Opinion
1992-05923
Submitted May 30, 2002.
June 25, 2002.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Colabella, J.), rendered November 29, 1990, convicting him of kidnapping in the first degree (three counts), grand larceny in the second degree, assault in the second degree (four counts), and criminal possession of a weapon in the fourth degree (two counts), after a nonjury trial, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress identification testimony.
Susan B. Marhoffer, Mount Kisco, N.Y., for appellant, and appellant pro se.
Jeanine Pirro, District Attorney, White Plains, N.Y. (Valerie A. Livingston and Richard Longworth Hecht of counsel), for respondent.
Before: CORNELIUS J. O'BRIEN, J.P., HOWARD MILLER, ROBERT W. SCHMIDT, BARRY A. COZIER, JJ.
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, the defendant's waiver of his right to a jury trial was made knowingly and voluntarily. With the defendant's consent, the trial court properly conducted a combined pretrial suppression hearing and nonjury trial (see People v. Moreno, 70 N.Y.2d 403, 405-406; People v. Montalvo, 263 A.D.2d 461, 462). The defense counsel's consent to such a procedure did not deprive the defendant of the effective assistance of counsel (see People v. Hanson, 256 A.D.2d 74). Further, counsel's failure to file a notice of appeal, which resulted in the granting of the defendant's Federal habeas corpus petition (see Restrepo v. Kelly, 178 F.3d 634), and this belated appeal, does not provide any basis for a reversal of the defendant's conviction.
The hearing court's denial of that branch of the defendant's omnibus motion which was to suppress identification testimony was amply supported by the record (see People v. Jakins, 277 A.D.2d 328).
O'BRIEN, J.P., H. MILLER, SCHMIDT and COZIER, JJ., concur.